Seriously, how weird and twisted can the commentariat get over Obama winning the Nobel Peace Prize?
The latest piece of idiocy, that Peace Prize of Obama's - it's Unconstitutional!
Well - at least according to esteemed Washington Post contributors Ronald D. Rotunda and J. Peter Pham. On which legal theory do they base this assertion? Why, on the Emolument Clause - Article 1, Section 9.
Said clause states:
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.
and, Rotunda and Pham believe that the Nobel Peace Prize constitutes an Emolument - or maybe they think it is purely the money. Hell, they even cite prior opinions to back up their position thusly:
An opinion of the U.S. Attorney General advised, in 1902 that "a simple remembrance," even "if merely a photograph, falls under the inclusion of 'any present of any kind whatever.' " President Clinton's Office of Legal Counsel, in 1993, reaffirmed the 1902 opinion, and explained that the text of the clause does not limit "its application solely to foreign governments acting as sovereigns." This opinion went on to say that the Emolument Clause applies even when the foreign government acts through instrumentalities. Thus the Nobel Prize is an emolument, and a foreign one to boot.
So, this must be the first time that a sitting President has won this thing, right? Oh, wait, even Rotunda & Pham admit that this is in truth the third occasion on which a sitting President has received the Nobel Peace Prize.
The award of the peace prize to a sitting President is not unprecedented. But Theodore Roosevelt and Woodrow Wilson received the honor for their past actions: Roosevelt's efforts to end the Russo-Japanese War and Wilson's work in establishing establish the League of Nations. Obama's award is different. It is intended to affect future action. As a member of the Nobel Committee explained, the Prize should encourage Obama to meet his goal of nuclear disarmament. It raises important legal questions for the second time in less than 10 months -- questions not discussed, much less adequately addressed anywhere else.
Now, what is interesting to me about the prior paragraph is what it does not say, rather than the twisted manner in which the belatedly introduce a strawman not central to their purported argument. (The strawman being that the Peace Prize was awarded for future action, rather than for actions during the prior year. Irrelevant as far as whether the Peace Prize award is constitutional or not, and directly undercut by statements to the contrary from the Nobel Peace Prize Committee). What isn't said is - how was the acceptance of the Peace Prize by Wilson or Roosevelt handled. Both awards to sitting Presidents after the 1902 opinion which Rotunda and Pham cite in their opinion piece.
In Teddy Roosevelt's case he was awarded the Nobel Peace Prize in 1906, writing to the Nobel Prize Committee in January of 1907 to indicate his acceptance of the honor, Roosevelt was clear on what he was going to accept.
"The medal and diploma will be prized by me throughout my life, and by my children after my death. I have turned over the money to a committee, including the Chief Justice of the Supreme Court of the United States and the Secretaries of Agriculture and Commerce and Labor, in trust, to be used as a foundation for promoting the cause of industrial peace in this country. In our modern civilization it is as essential to secure a righteous peace based upon sympathy and fair dealing between the different classes of society as it is to secure such a peace among the nations of the earth; and therefore I have felt that the use I have made of the amount of the Nobel Prize was one peculiarly in accordance with the spirit of the gift."
Now, lest you think this has anything to do with Roosevelt's wish to avoid emoluments, ointments or other salves monetary or greasy - think again. In his mind the key to not accepting the money was that it would have been immoral, "like taking money for saving a drowning man."
However, this was not the end of the saga concerning Roosevelt's Peace Prize moneys. Nothing came of his notion to create a foundation. Later the following arrangement was made:
FINAL DISPOSITION OF TR'S NOBEL PEACE PRIZE FUND
NOTE: Theodore Roosevelt declined to keep the money awarded in 1906 for the Nobel Peace Prize, and tried to establish with the prize money a foundation to promote industrial peace in the United States.
Nothing came of this idea, and during World War I, TR asked Congress to authorize the return of the money, which had been held by a commission created by Congress. Congress passed legislation returning the prize money to Roosevelt, who then distributed the fund to charities and war relief work.
The original prize was $36,734.79. By 1918, the fund with interest was $45,482.83. On August 22,1918, Roosevelt wrote to Representative James Ambrose Gallivan, Democrat from Massachusetts, giving a full accounting of the distribution of the fund.
From the Theodore Roosevelt Association
What is notable about the history of this event is what is missing - no mention of the Emolument Clause.
What then of Woodrow Wilson and his award of the Peace Prize? His win came in 1919, and is more notable for the contrast it affords to the future effectiveness of the League of Nations than for any contretemps over his acceptance of the Prize. (Which he did do in 1920 - though he was unable to attend due to ill health).
That Rotunda or Pham are looking for their unconstitutional emolument should not be too surprising given their pasts.
Ronald Rotunda
- He served as an advisor to Ken Starr during Starr's tenure as special prosecutor during the Clinton Administration. Previously, he had served on the investigative team during the Watergate scandal.
J. Peter Pham
J. Peter Pham is director of the Nelson Institute for International and Public Affairs at James Madison University and an adjunct fellow at the Foundation for the Defense of Democracies. A prolific author, Dr. Pham’s recent books include Liberia: Portrait of a Failed State (2004) and Child Soldiers, Adult Interests: The Global Dimensions of the Sierra Leonean Tragedy (2005). He also writes "Strategic Interests," a weekly column for World Defense Review on political and security issues in Africa, and has testified before the U.S. Congress and conducted briefings or consulted for both Congressional and Executive agencies on the same.
Dr. Pham is a contributing editor for NavySEALs.com and FamilySecurityMatters.com, and a regular contributor to print and internet media, including National Review and National Review Online.
Before ending, there is of course one other minor matter which Rotunda and Pham ignore - President Obama has already said he accepting the honor but not the money (or emolument if your prefer).
But hey when you are crack legal scholars like Rotunda or Pham - why let little things like facts get in your way?
Minor Addition - On the Money
First, thanks for all the comments diary visitors, snarky, witty, agreeable or in dissent.
On the money seems to be the primary focus of Rotunda & Pham's ire, or, more precisely it is what Rotunda and Pham focus on. After all, if it was simply being called "Peace Prize Winner" and all that Obama got was a T-shirt what case might they have? Yes, that is right, absolutely none.
As it is their case is, in my opinion, thin - based on some of the very precedents they cite. Here is why:
The Nobel Prize consists of the Medal, The Diploma, a monetary award and the award itself. The "emolument" is defined at the web site describing the US Constitution as ...
Emolument
emolument n [ME, fr. L emolumentum, lit., miller's fee, fr emolere to grind up] : the product (as salary or fees) of an employment Source: NMW
As grannyhelen notes below the award for Woodrow Wilson did not result in extensive examination of the emolument clause. Moreover, Roosevelt clearly accepted the medal and diploma.
The medal alone was 200g (just under 7 oz) of 24-carat Gold in those days. Today it is 24-carat clad onto 18-carat Green Gold, net gold content roughly 5.3 oz. My point being that the medal alone is worth a lot based on say $1,000 an ounce gold. Factor in the intrinsic value of a Nobel Prize medal and that should boost the value by a significant factor.
Then multiply such a factor further by the "unique" elements. Say, in Teddy Roosevelt's case being the first US President to get the award. Say in Obama's case being the first African-American President to win the award - and the first President to win so early in his term in office.
And Teddy got to keep his medal (as did Woodrow Wilson) without any permission slip from Congress.
Lastly, there has been some discussion in the thread below concerning tax consequences, which were raised as another specter on the WashPo comment section to the Rotunda / Pham article. As Jane Lew notes below the Nobel Prize monetary award is often deemed tax-free.
Some of the IRS decision making criteria:
The IRS also says that you can keep the prize money out of your taxable income if you meet all of the following three requirements:
1. You were selected without any action on your part to enter the contest or proceeding.
2. You are not required to perform substantial future services as a condition for receiving the prize or award.
3. You give the prize or award to a governmental unit or tax-exempt charitable organization.
You can read more on the tax-exemption rules here. Al's tax advisers no doubt did.
One of the components of point #3 is that the money go directly to a qualified charity or governmental unit rather than passing through the award winner's hands or bank account.